Fidesio Kinyua Mark t/a Jobin Enterprise v Eco Bank Kenya Limited & 3 others [2022] KEELC 2092 (KLR)
The bottom line
#A Kenyan appeal died automatically when the appellant died and no one was substituted within one year, so the court struck it out with costs.
What this practically means
#Executive summary
#Key legal issues
#Abatement of appeal on death of sole appellant
The appeal abated on 23.8.2021, one year after the appellant's death on 23.8.2020, as no substitution or extension of time application was made under Order 24 Rule 2(2).
The death of the appellant on 23.8.2020 was admitted. Order 24 Rule 2(2) requires substitution within one year of death. The only substitution application was dismissed for non-prosecution on 12.10.2021, and no application for extension of time or revival of the appeal was ever made, leaving the court unable to exercise any discretion in the appellant's favour.
Appeal overtaken by events
The appeal was overtaken by events and had become an academic exercise because the suit property was sold at public auction on 2.5.2018 and transferred to the 4th respondent, with a title deed issued on 14.11.2019.
The record showed that on 17.7.2019 the court was informed the auction sale and transfer had taken place, and it declined to maintain the status quo. The appellant did not deny the 4th respondent's contention that the orders sought were spent, rendering the appeal untenable.
Legal principles established
#- An appeal abates where a sole appellant dies and no substitution or application for extension of time to substitute is made within one year of death under Order 24 Rule 2(2) of the Civil Procedure Rules
- A court cannot exercise discretion in favour of an appellant where no application for revival of the appeal has been made
- An appeal whose reliefs are spent because the suit property has been transferred is untenable and academic
Court orders
#- 1.Preliminary objection dated 8.10.2021 upheld
- 2.Appeal struck out with costs
- On appeal from
- Chief Magistrate's Court (lower court)
- Jurisdiction invoked
- Appellate jurisdiction over an appeal against a lower court ruling, under the Civil Procedure Rules (Order 24 Rule 2(2) invoked on abatement)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fidesio Kinyua Mark t/a Jobin Enterprise v Eco Bank Kenya Limited & 3 others [2022] KEELC 2092 (KLR)", Case Analysis (2022). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2092/eng@2022-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.